Forty Two International Pty Limited v Barnes [2014] FCA 85

FEDERAL COURT OF AUSTRALIA

Forty Two International Pty Limited v Barnes [2014] FCA 85 Citation: Forty Two International Pty Limited v Barnes [2014] FCA 85

Parties: FORTY TWO INTERNATIONAL PTY LIMITED ACN 095 622 889, BLUEFREEWAY LIMITED ACN 112 262 819 and THE GANG OF 4 PTY LTD ACN 095 624 678 v KIM BARNES and LEE HAWKSLEY

File number(s): NSD 2018 of 2008

Judge(s): GRIFFITHS J

Date of judgment: 18 February 2014

Catchwords: CONTRACT – whether respondents breached implied terms in contract – implied terms attaching to express terms – implied term to disclose matters relevant to express term – loss of opportunity – interpretation and application of release and entire agreement clauses where cause of action concealed by party seeking to rely on them TRADE PRACTICES – whether respondents engaged in misleading or deceptive conduct through non-disclosure – misleading or deceptive conduct by silence – application of s 42 of the Fair Trading Act 1987 (NSW) – loss of opportunity DUTY TO DISCLOSE – whether there is a duty under the general law requiring directors to disclose material personal interests relating to the interests of the company – whether there is a duty under the general law requiring directors not to place their own personal interests in actual or potential conflict with interests of company – whether respondents breached these general law duties CORPORATIONS – whether duties under ss 182 and 191 of Corporations Act 2001 (Cth) were breached by non-disclosure of personal interest in a transaction by directors of company DAMAGES – assessment of damages for loss of opportunity – quantifying damages EVIDENCE – discussion of principle in Jones v Dunkel (1959) 101 CLR 298 – application of ss 69, 135, 183 of the Evidence Act 1995 (Cth) CROSS CLAIM – whether the applicants made misleading or deceptive representations – application of s 52 of the Trade Practices Act 1974 (Cth)